HARISHCHANDRA Vs. VIJAYKUMAR

JUDGEMENT

(1.) Plaintiff/Appellant has filed the present appeal being aggrieved by the judgment and decree dated 11.09.1996 passed in Civil Suit No.2A/94 by IInd Civil Judge, Class-II, Dhar and judgment and decree dated 15.09.1998 passed by IIIrd Additional District Judge, Dhar in Civil Appeal No.50A/97, whereby the suit as well as first appeal both have been dismissed on the ground of limitation.

(2.) Plaintiff filed a suit for redemption of ground floor of house bearing Municipal No.219 (old No.119), Sadar Bazar, M.G.Road, Dhar (for short 'the suit house'). The suit house is situated in ground floor of House No.219 & upper floor is in possession of plaintiff. The defendant is using suit house as a shop. According to the plaintiff, late Kaushalyabai w/o Haridasji was the owner of the suit house which she mortgaged with defendant on 27.06.1953 for a loan of Rs.1,600/-. The aforesaid mortgage was Usufructuary Mortgage. He further pleaded that later on Kaushalyabai executed a Will dated 15.03.1980 in his favour bequeathing the suit property as he is the son of daughter of Kaushalyabai. Thereafter, she expired on 09.06.1980. By virtue of the Will dated 15.03.1980, the plaintiff has got right to redeem the suit property. He demanded the documents in respect of the mortgage deed from the defendant but he did not provide it. Thereafter, he obtained the certified copy of the deed from the Office of Assistant Registrar, Dhar on 03.09.1987. After getting the certified copy of deed, he served a notice dated 04.09.1987 through his counsel to the defendant for repayment of loan amount and release of suit house. The defendant submitted a reply on 14.09.1987 denying the entitlement of the plaintiff to redeem the suit property. Thereafter, the plaintiff filed the suit for redemption on 25.01.1988.

(3.) After receipt of summons, defendant appeared and filed written statement by submitting that Kaushalyabai took a loan of Rs.1,000/- from his father and mortgaged the suit house on 02.01.1948 and since then he is in possession of the suit house. In the year 1953, at the time of marriage of her second daughter, she again took a loan of Rs.600/- and executed the mortgage deed dated 27.06.1953 in his favour for the entire loan of Rs.1,600/-. He further pleaded that he had spent Rs.4,000/- during the life time of Kaushalyabai for renovation of the suit property. The defendant has further raised a plea of limitation by submitting that the period of redemption had already been expired during life time of Kaushalyabai and the suit is not maintainable and liable to be dismissed.